1

Filed 6/24/21 (unmodified opinion attached)

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMELL TOUSANT, 

Defendant and Appellant.

 A156044

 (Alameda County 

 Super. Ct. No. 178808)

ORDER MODIFYING OPINION

AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the partially published opinion filed on May 26, 2021, 

be modified as follows:

On page 8, in the first full paragraph, sixth sentence, change “Officer 

Fuentes, who arrived on the scene, believed the car was connected to the 

shooting,” to “Officer Fuentes and Sergeant Royal arrived at the scene, 

and Sergeant Royal believed the car was connected to the shooting.”

On page 10, in the first full paragraph, in the first to the last sentence 

change, “Shell casings and a loaded firearm magazine were located on the 

street a few feet from the car” to “A loaded firearm magazine was located 

on the scene, and shell casings were on the street a few feet from the 

car.”

In the paragraph beginning at the bottom of page 10 that begins with 

the sentence, “These circumstances—” change the phrase within that

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified 

for publication with the exception of parts III through VIII of the Discussion.
2

sentence at the top of page 11 from “its unfamiliarity to nearby residents,” to 

“its unfamiliarity to a nearby resident.”

On page 15, first paragraph, in the sentence beginning, “By turning the 

cellphone on,” change the words “viewing a photo” to “viewing a few 

photos.”

On page 39, in the paragraph that begins at the bottom of page 38, in 

the sentence that begins, “And although specific intent to target a person is 

not required,” change the words from “10 to 15 shots were fired directly at 

one of the men” to “5 to 10 shots were fired directly at one of the men.”

There is no change in the judgment.

Appellant’s petition for rehearing is denied.

Dated: _______________ _________________________

Kline, P.J.
3

Trial Court:Alameda County Superior Court

Trial Judge: Hon. Kevin R. Murphy

Counsel: 

James S. Donnelly-Saalfield, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D. 

Share, Leif M. Dautch and Rene A. Chacon, Deputy Attorneys General, for 

Plaintiff and Respondent.
1

Filed 5/26/21 (unmodified opinion)

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMELL TOUSANT, 

Defendant and Appellant.

 A156044

 (Alameda County 

 Super. Ct. No. 178808)

A jury convicted defendant Jamell Tousant of numerous counts related

to a shooting targeting several individuals in a residential area of Berkeley

and to his possession of firearms. On appeal, Tousant primarily challenges 

the denial of his motion to suppress evidence downloaded from his cellphone, 

seized after an allegedly illegal search of his car left at the scene of an 

Oakland shooting. He also identifies several purportedly erroneous rulings, 

including the admission of incriminating statements to a police officer, 

admission of uncharged acts, denial of a motion to sever, and an improper 

response to a jury question. There was no error in these rulings. We also 

reject Tousant’s claim the evidence supporting three assault convictions was 

insufficient and affirm. 

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for 

publication with the exception of parts III through VIII of the Discussion.
2

BACKGROUND

In January 2016, the Alameda County District Attorney filed an eightcount information, charging Tousant for crimes related to an August 15, 2015 

shooting. This included four counts of assault with a firearm (Pen. Code, 

§ 245, subd. (a)(2)1 (counts 1-4)); two counts of shooting at an inhabited 

dwelling (§ 246 (counts 5-6)); one count of shooting at an unoccupied vehicle 

(§ 247, subd. (b) (count 7)); and one count of possession of a firearm by a felon 

(§ 29800, subd. (a)(1) (count 8)). The information further alleged an 

enhancement for personal use of a firearm and causing great bodily injury for 

the assault and shooting of the dwelling (§§ 12022, 12022.5, subd. (a), 

12022.7, 12022.53). 

In July 2016, an additional three-count information was filed related to 

an August 31, 2015 traffic stop, alleging Tousant was a felon carrying a 

concealed, loaded, and unregistered firearm in a vehicle (§ 25400, 

subds. (a)(1), (c)(1), (c)(6) (count 9)); carrying a loaded, unregistered firearm 

on his person in a city (§ 25850, subds. (a), (c)(1), (c)(6) (count 10)); and 

possessing a firearm (§ 29800, subd. (a)(1) (count 11)). The two cases were 

later consolidated. The evidence below was revealed at a 2018 jury trial.

I.

Murder of Tousant’s Son

In April 2015, Tousant’s son, Tousant Jr., was shot and killed as the 

result of possible gang violence. To prevent retaliatory shootings, undercover 

police surveilled the hospital where Tousant Jr. was brought for treatment

but ultimately died. One officer witnessed Tousant standing outside the 

hospital, holding a long-barreled shotgun and an ammunition belt with 

1 All further statutory references are to the Penal Code unless 

otherwise stated.
3

shotgun rounds. Tousant was upset and agitated, at one point loudly stating,

“Fuck that. Fuck the police.”

Oakland Sergeant Leonel G. Sanchez, who was investigating 

Tousant Jr.’s murder, later sought information from Tousant. Sanchez asked

Tousant to contact him if he discovered or received any helpful information, 

cautioned Tousant to not take matters “into his own hands,” and urged him

allow the Oakland Police Department to investigate his son’s death. Aside 

from expressing his belief Tousant Jr.’s death may have been related to a dice 

game, Tousant did not provide Sanchez any information at that time. 

Tousant nonetheless undertook his own investigation. He believed his 

son had a feud with the Five Finga Mafia, a gang in Berkeley. Tousant Jr.’s 

friends confirmed the Five Finga Mafia threatened them after they took a 

chain and a watch from the gang’s members. Tousant searched for 

information about Five Finga Mafia, eventually identifying people associated 

with them. Members of the Five Finga Mafia included Nigel Blackwell and 

Kevin Greene. Tousant later came to believe that Nigel Blackwell killed his 

son. 

II.

Berkeley Shooting

The evening of August 15, 2015, Jocko Milan, Rashad Jacob,2 David 

Conerly and Kevin Greene were standing outside 2806 Mabel Street, a house

in Berkeley across the street from San Pablo Park. At approximately 

6:30 p.m., a white, four-door vehicle pulled up in front of the house. From the 

car window, the passenger fired 10 to 15 shots from a long-barreled gun 

2 There is a discrepancy in the record regarding the spelling of Rashad 

Jacob’s name. We adopt the spelling of his name used in the information and 

medical records, “Rashad Jacob.”
4

towards the house where the four men congregated. Greene and Jacob ran 

away and jumped over a fence. Jacob was shot in the leg. One of the men

ran out of the house’s front yard and continued down the street. The driver

got out of the white vehicle and fired approximately 5 to 10 shots from a 

handgun at the fleeing man, who eventually hid behind another car. The 

driver then got back into the car and drove away. At that point, Conerly 

jumped into a friend’s car and drove away. 

In another car, a witness who was waiting at a traffic light nearby 

heard the gunshots. That witness soon noticed the white, four-door vehicle 

pull up beside his car, drive on the wrong side of the road, and slowly drive 

through the red light. This witness wrote down the license plate number, 

6AAY078, which was later determined to be the license plate for Tousant’s 

car.

Police recovered 10 bullet casings from the scene of the shooting—seven 

7.62 by 39-caliber casings, and three .45-caliber casings. Records confirmed 

that Tousant’s cellphone was near San Pablo Park at both 6:17 p.m. and 

6:27 p.m. the day of the shooting. Shortly after the shooting, Tousant and his

girlfriend, Hillary Yamitch, exchanged a series of messages. In one, Tousant

texted, “I’m Hot[.] Did something trying to see if the police come over.” 

Yamitch responded, “[W]hat? I thought you said you weren’t going to do 

anything.” Tousant denied taking any actions, but again asked Yamitch 

whether police were at their house. Tousant stated, “I can’t worry about 

justice for my son & worry about your feelings to [sic] I tryed [sic]. But for 

once I’m going to take my son [sic] side.” 
5

III.

Uncharged Oakland Shooting

At approximately 4:30 a.m. on August 20, 2015, Bruce McMahan 

backed his car out of the driveway from his house at 1312 105th Avenue in 

Oakland—a driveway shared with his neighbors living at 1314 105th Avenue. 

Someone then jumped out from behind a car on the street and started 

shooting at him. Several bullets pierced through McMahan’s car but did not 

injure him. He panicked and quickly reversed his car. While backing up, 

McMahan saw another man directly across the street. The shooter and the

man standing across the street then got into a white four-door vehicle and 

drove away. 

From the scene of this shooting, police recovered 14 9-millimeter shell 

casings, a loaded semiautomatic handgun magazine, and two unfired 7.62 by 

39-millimeter bullets. They also found Tousant’s red Chevrolet Camaro 

rental car parked across the street from McMahan’s house, blocking a 

resident’s driveway, and only a few feet from the shell casings. Police 

searched the car and recovered, among other things, the rental agreement for 

the car and Tousant’s cellphone. 

One of Tousant’s contacts had sent him a message with the address 

1314 105th Avenue—the address of the Oakland shooting. The contact, at 

Tousant’s request, had confirmed the address belonged to “Nigel.” After 

reviewing the internet search history on Tousant’s cellphone, the police 

determined Tousant had looked up the 1314 105th Avenue address at 

10:57 p.m. on August 19, five hours before the Oakland shooting occurred. In 

one text message sent two days before the shooting, Tousant stated, “Brah, 

it’s serious” and “Bring my gun. I’m on 9 Ave.” 
6

IV.

August 31, 2015 Traffic Stop

On August 31, 2015, Tousant and two other people were sitting in his 

parked Chevrolet Impala while in Oakland. An Oakland police officer 

checked the license plate number, 6AAY078, and confirmed Berkeley police 

were seeking the car in relation to an unspecified violent crime. The officer 

then performed a traffic stop of Tousant’s car, detained Tousant and the

other passengers, and informed Berkeley police about the stop. The Berkeley

police arrived and searched the car, yielding a loaded 9-millimeter handgun

and a 7.62 by 39-caliber shell casing, the same caliber bullet as one of the 

guns used in the Berkeley shooting. 

V.

Defense Case

Tousant testified that when his son was killed on April 28, 2015, he 

stood outside the hospital with a shotgun and ammunition because he 

wanted to protect other members of his family from possible gang violence. 

He acknowledged meeting with Sanchez, agreed to help with the police 

investigation, and started gathering information about possible suspects and 

motives relevant to his son’s killing. While he admitted researching the Five 

Finga Mafia and Kevin Greene, he disavowed any knowledge of Greene’s 

residence. 

Tousant admitted he was near San Pablo Park on August 15, 2015, the 

day of the Berkeley shooting, but claimed he was visiting his girlfriend. 

Upon hearing the gunshots, he left the area and drove to Oakland. At the 

time, he was using his Camaro rather than his Impala. He had lent the 

Impala to a man named “Fresh.” Later that night, Tousant discovered his 

Impala had been involved in the Berkeley shooting. He texted Yamitch 
7

because he feared the car would connect him to the Berkeley shooting. He 

further explained that when he texted “Did something,” he was referring to 

lending his Impala to Fresh. 

Tousant also acknowledged that he was at the scene of the Oakland 

shooting—where he believed Nigel Blackwell lived—on August 20, 2015. He 

arrived at approximately 3:00 a.m., parked his Camaro across the street, 

stayed there for approximately one hour before he walked around the block to 

look for Nigel Blackwell’s car. When he later heard gunshots, Tousant fled on 

foot, leaving his Camaro because he “didn’t want to deal with it.” 

VI.

Verdict and Sentencing

The jury convicted Tousant of all counts but found the personal-use 

firearm allegations not true. The trial court imposed a sentence of 22 years 

in state prison. This timely appeal followed. 

DISCUSSION

I.

The Trial Court Properly Rejected Tousant’s Motion to Suppress 

Evidence Obtained from His Car and Cellphone.

Tousant claims the trial court erroneously denied his motion to 

suppress evidence obtained after the Oakland shooting and in violation of his 

Fourth Amendment right to be free from unreasonable searches and seizures. 

(U.S. Const., 4th Amend.) After assessing each aspect of the search and 

seizure, we disagree. 

A. Standard of Review

A warrantless search is presumptively unreasonable unless it falls 

within a “ ‘specifically established and well-delineated’ ” exception to the 

warrant requirement. (People v. Lopez (2019) 8 Cal.5th 353, 359; U.S. Const., 

4th Amend.) “Evidence obtained from a search or seizure in violation of the 
8

Fourth Amendment must be excluded from use at a criminal trial only if 

required by federal law.” (People v. Barnes (2013) 216 Cal.App.4th 1508, 

1513.) A defendant may move to suppress evidence obtained without a 

warrant as unreasonable. (§ 1538.5, subd. (a)(1)(A).) The prosecution must 

demonstrate a legal justification for the search. (People v. Evans (2011) 

200 Cal.App.4th 735, 742.) When reviewing a ruling on a suppression 

motion, we consider the record in the light most favorable to the trial court’s 

decision and defer to its factual findings if supported by substantial evidence. 

(People v. Woods (1999) 21 Cal.4th 668, 673-674.) We independently review 

whether the search or seizure was reasonable. (Ibid.) 

B. The Relevant Facts and Proceedings Below

Police engaged in a warrantless search of Tousant’s Camaro rental car

a few hours after the Oakland shooting. The car was parked directly across 

the street from McMahan’s house. The resident who lived across the street 

from McMahan informed Oakland police that the car was not there when he 

left for work at approximately 2:00 a.m. When he returned home at 

approximately 5:00 a.m., he found the car partially blocking his driveway. 

He did not recognize the car, and no one came to retrieve it after the 

shooting. Officer Fuentes, who arrived on the scene, believed the car was 

connected to the shooting. The doors to the car were unlocked and the keys 

were in the ignition. A police technician entered the car, and once inside, saw 

a cellphone and some clothing and found a rental agreement bearing 

Tousant’s name in the car’s center console. The officer collected these items 

and took them to the police department. 

On September 2, Officer Lorena Arreola, who had been investigating 

Tousant and his potential involvement in the Oakland shooting, turned on 

the seized cellphone to identify its phone number. She retrieved the number 
9

by looking through the settings folder on the phone. She also found a 

photograph of Tousant’s driver’s license on the phone. A computer program 

used for identifying phone subscribers by their telephone numbers indicated 

the cellphone belonged to Tousant. Arreola then used this cellphone number 

and other details of her investigation of Tousant to write an affidavit in 

support of a search warrant of the cellphone. A warrant issued on 

September 4, and Arreola downloaded the cellphone’s contents, including 

Tousant’s photos, internet search history and the text messages between 

Tousant, Yamitch, and other contacts. 

At a preliminary hearing before a magistrate, Tousant moved to quash 

the warrant and suppress this evidence (§ 1538.5). The magistrate held that 

Tousant had standing to challenge the search of the car, finding he did not 

abandon it. But the magistrate summarily denied the suppression motion.

Tousant’s trial counsel renewed the motion to suppress (§ 1538.5, subd. (i)). 

Like the magistrate, the trial court found Tousant did not abandon the car 

but denied the motion.

C. The Search of Tousant’s Car Was Justified.

Tousant contends there was no probable cause to search his Camaro

without a warrant. We find the search and seizure justified under the 

automobile exception to the warrant requirement.

That exception authorizes law enforcement to conduct a warrantless 

search of any area of a vehicle if there is probable cause to believe it contains 

evidence of criminal activity or contraband. (People v. Lopez, supra, 8 Cal.5th

at p. 372; U.S. v Ross (1982) 456 U.S. 798, 799-800.) “Probable cause to 

search exists when, based upon the totality of the circumstances . . . ‘there is 

a fair probability that contraband or evidence of a crime will be found in a 

particular place.’ ” (People v. Farley (2009) 46 Cal.4th 1053, 1098 (Farley); 

Illinois v. Gates (1983) 462 U.S. 213, 230-239.) The automobile exception is 
10

rooted in the differences between vehicles and dwellings—vehicles are 

mobile, creating a risk evidence may be moved or lost while officers seek out

a search warrant. (California v. Acevedo (1985) 500 U.S. 565, 569.) The 

rationale for this exception evolved, recognizing there is a lesser expectation 

of privacy in a vehicle than a dwelling. (California v. Carney (1985) 471 U.S. 

386, 391.) Decisions upholding warrantless searches of vehicles thus do not 

distinguish between searches conducted on parked vehicles or vehicles that 

have been stopped by police on a highway. (People v. Superior Court 

(Overland) (1988) 203 Cal.App.3d 1114, 1119.)

Here, law enforcement could reasonably conclude the Camaro was 

connected to the shooting and could contain evidence relevant to the crime. 

(Cf. People v. Superior Court (Hampton) (1968) 264 Cal.App.2d 794, 798

[search of vehicle reasonable where witness identified car as belonging to 

potential suspect of burglary, even though intruder fled on foot].) The trial 

court found the car was parked in a haphazard way, partially blocking a 

resident’s driveway and directly across the narrow street from where 

McMahan’s truck was shot. It was there when Officer Fuentes arrived 

shortly after 4:30 a.m. The resident informed Fuentes that he did not 

recognize the car and it had not been parked there at approximately 

2:00 a.m. when he left for work. The officer conducted a record check of the 

license plate and discovered it was a rental car. The doors were unlocked,

and the keys were in the ignition, suggesting that the driver left the car 

quickly. Shell casings and a loaded firearm magazine were located on the 

street a few feet from the car. Across the street from the Camaro was a 

vehicle riddled with bullet holes that had crashed into two parked cars. 

These circumstances—the Camaro’s proximity to the target of the 

shooting, bullet casings, and loaded magazine, its arrival on the scene shortly 
11

before the shooting, its unfamiliarity to nearby residents, and the indications 

it was a rental car, which the driver hastily parked and fled—in their totality 

established “a fair probability” that the vehicle and its occupants were 

connected to the shooting and that the car would contain evidence of that 

crime. (See Farley, supra, 46 Cal.4th at p. 1098.) We agree with the 

magistrate that there was probable cause to search the Camaro.

Tousant disputes this conclusion by narrowly examining the individual

circumstances one by one, arguing none of them alone establishes probable 

cause. For instance, he claims the Camaro’s proximity to the shooting and 

bullet casings does not itself establish probable cause for an automobile 

search. He further contends the red Camaro is unconnected to the Oakland

shooting because it does not match the description of the suspect’s vehicle—

an older, white four-door sedan. This analysis is flawed. The relevant 

inquiry is whether the totality of the circumstances would lead a person of 

“ordinary caution or prudence to believe, and conscientiously to entertain, a 

strong suspicion that the object of the search is in the particular place to be 

searched.” (People v. Dumas (1973) 9 Cal.3d 871, 885.) Here, as we have 

said, based on all of the facts known to them at the time, the police could 

reasonably believe the Camaro was connected to and would yield evidence of 

the crime.

Because we conclude there was probable cause to search the Camaro, 

we need not address the People’s additional arguments that Tousant 

abandoned the car and therefore lacked standing to challenge the search. We 

also do not address their claim that the smell of unburnt marijuana justified 

the search of the car. 
12

D. There Was Probable Cause to Seize Tousant’s Cellphone.

For similar reasons, the police properly seized Tousant’s cellphone3—

found in plain view, in “the clearly visible portion of the center console near 

the left-hand side of the center console cup holder, close to the right edge of 

the driver’s seat.” We are unconvinced by Tousant’s arguments that seizure 

of the cellphone was unjustified because cellphones are not inherently illegal 

items, the cellphone lacked any nexus with suspected criminal activity, and 

law enforcement unduly delayed obtaining a search warrant to search the 

contents of the cellphone after it was seized. 

Like searches, seizures must be reasonable on the facts presented. 

(People v. Lenart (2004) 32 Cal.4th 1107, 1119.) Officers may seize evidence 

in plain view “from a position where the officer has a right to be,” including a 

vehicle he or she is entitled to search. (People v. Webster (1991) 

54 Cal.3d 411, 431.) “In the cell phone context . . . it is reasonable to expect 

that incriminating information will be found on a phone regardless of when 

the crime occurred.” (Riley v. California (2014) 573 U.S. 373, 388, 399 (Riley) 

[defense concession that officers can seize and secure cell phones discovered 

during proper searches of a defendant’s person incident to arrest is 

“sensible”].) Here, police reasonably believed the Camaro and its driver were 

connected to the shooting. Based on the totality of the circumstances we have 

3 Tousant also challenges the search and seizure of additional items 

from his car, including a rental agreement, cigarette butt, and an interim 

driver’s license, but he fails to advance any arguments specifically addressing 

those items in his opening brief. He thus fails to meet his burden on appeal 

demonstrating error. (See People v. Sullivan (2007) 151 Cal.App.4th 524, 549 

[“ ‘ “We must indulge in every presumption to uphold a judgment, and it is 

defendant's burden on appeal to affirmatively demonstrate error—it will not 

be presumed” ’ ”].)
13

already discussed, there was probable cause to believe the cellphone would

contain evidence related to the shooting, and therefore it was properly seized. 

Nor was law enforcement’s 15-day retention of Tousant’s cellphone 

before securing a warrant to search its contents unreasonable, an argument

Tousant raises for the first time on appeal. Seizures, which affect a person’s 

possessory interest in an item, are less intrusive than searches, which 

implicate a person’s privacy interests. (Segura v. U.S. (1984) 468 U.S. 796, 

806, 812; People v. Tran (2019) 42 Cal.App.5th 1, 8.) The interest in 

protecting “incriminating evidence from removal or destruction can 

supersede, at least for a limited period, a person’s possessory interest in 

property, provided that there is probable cause to believe that that property 

is associated with criminal activity.” (Segura, at p. 808.)

The record does not support Tousant’s claim he had an “undiminished 

possessory interest” in his cellphone that was affected by the delay in 

securing a search warrant. Tousant does not claim he requested the return of 

the cellphone. Nor does he cite any evidence below that he ever sought 

return of the cellphone. (U.S. v. Johns (1985) 469 U.S. 478, 487 [delay in 

obtaining a warrant did not adversely affect possessory interests where 

defendant did not seek return of property and failed to allege or prove the 

delay “adversely affected legitimate interests protected by the Fourth 

Amendment”].)4

4 At trial, Tousant testified that he did not retrieve the car because he 

“didn’t want to deal with it.” The People also offered evidence at trial

indicating Tousant began storing data on a different phone on August 20, 

2015, the date policed seized the cellphone from the Camaro. The People 

argue this evidence shows Tousant had no intention of retrieving the seized 

cellphone. We need not rely on this evidence, which was elicited well after 

the magistrate and trial court had denied the motions to suppress. 
14

The police, on the other hand, had a substantial interest in extracting 

data from the cellphone. Based on the evidence gathered at the scene of the 

Oakland shooting and subsequent investigations, which we discuss further 

below, Officer Arreola believed Tousant was involved, and the cellphone 

would contain evidence relevant to that event. Given the lack of any showing 

by Tousant that his possessory interests were affected by the two-week delay 

in searching the contents of cellphone retrieved from the Camaro, Tousant 

does not demonstrate the length of the seizure was unreasonable. 

E. The Search Warrant for Tousant’s Cellphone Was Valid.

Tousant contends Arreola’s limited September 2 warrantless search of 

Tousant’s cellphone to identify its corresponding telephone number was 

illegal. According to Tousant, without this information confirming his 

ownership of the cellphone, there was no probable cause to believe the phone 

contained any evidence of the Oakland shooting. Thus, he argues there was

no basis to issue a warrant to search the phone, and in any event, the 

resulting warrant was overbroad.5

When determining whether probable cause existed for the issuance of a 

search warrant, we assess the totality of the circumstances under which the 

warrant issued. (Illinois v. Gates (1983) 462 U.S. 213, 230-235; § 1525 [“A 

search warrant cannot be issued but upon probable cause, supported by 

affidavit”].) Doubts as to whether an affidavit supporting a search warrant

establishes probable cause are resolved in favor of the validity of the warrant. 

(People v. Frank (1985) 38 Cal.3d 711, 722.) 

5 We do not address Tousant’s challenge to the scope of information 

sought by the warrant to search Tousant’s cellphone, an argument he failed 

to raise in the trial court and thus forfeits on appeal. (See People v. Tully

(2012) 54 Cal. 4th 952, 979-980 [specific claim not raised in defendant’s 

suppression motion in the trial court is forfeited on appeal].)
15

As a threshold matter, the People concede, and we agree, that Arreola’s 

initial pre-warrant search of Tousant’s cellphone on September 2, 2015, was 

illegal. The U.S. Supreme Court in Riley, supra, 573 U.S. 373, concluded 

officers may not engage in a warrantless search of “those areas of the phone 

where an officer reasonably believes that information relevant to . . . the 

arrestee’s identity” may be discovered. (Id. at p. 399 [addressing limited 

search of a cellphone seized incident to arrest].) Instead, absent an 

emergency, a warrant is required to search the digital contents of a cellphone. 

(Id. at p. 401.) By turning the cellphone on, using guesswork to determine its 

password, unlocking it, looking through the settings folder and viewing a 

photo, Arreola violated Tousant’s Fourth Amendment rights. Thus, the 

information she gleaned from this limited search of Tousant’s cellphone—the 

telephone number and photograph of his driver’s license—must be excised 

from the affidavit supporting the search warrant to view the digital contents 

of the phone. (People v. Weiss (1999) 20 Cal.4th 1073, 1081 (Weiss).)

Where, as here, “a criminal investigation involved some illegal conduct, 

courts will admit evidence derived from an ‘independent source’ ”—evidence 

“ ‘that has been discovered by means wholly independent of any 

constitutional violation.’ ” (Weiss, supra, 20 Cal.4th at p. 1077.) For search 

warrant affidavits containing “both information obtained by unlawful conduct 

as well as untainted information, a two prong-test applies to justify 

application of the independent source doctrine.” (People v. Robinson (2012) 

208 Cal.App.4th 232, 241.) “First, the affidavit, excised of any illegallyobtained information, must be sufficient to establish probable cause.” (Ibid.) 

Second, the evidence must support a finding that ‘the police subjectively 

would have sought the warrant even without the illegal conduct.’ ” (Ibid.) 

“[W]e determine de novo whether the search warrant affidavit is sufficient to 
16

establish probable cause . . . absent the information obtained by the illegal 

[conduct].” (Ibid.) 

Even without the tainted information derived from the illegal search—

the cellphone number and driver’s license information confirming Tousant’s 

connection with the cellphone—Arreola’s affidavit established probable cause 

to search the cellphone. (See Weiss, supra, 20 Cal.4th at p. 1081.) Most of 

the affidavit detailed Arreola’s investigation of Tousant before the

September 2 warrantless search of his phone. Arreola tied Tousant to the 

Oakland shooting because his rental car, the Camaro, was found at the scene 

of the shooting with his rental agreement inside it. The affidavit pointed out 

that the cellphone was recovered from the Camaro. Arreola chronicled

Tousant’s history of law enforcement contacts, including prior felony 

convictions for robbery and failure to register as a sex offender, his son’s 

death from a shooting, his presence at the hospital holding a loaded black 

shotgun in apparent violation of laws prohibiting felons from possessing 

firearms and ammunition, and his involvement in a shooting in July 2015 in 

which he was shot in the leg. She described Tousant’s arrest on August 31, 

2015, after police found him sitting in the Chevrolet Impala, the vehicle used

by the suspect in the Berkeley shooting. Items found in the Impala during 

that arrest further linked Tousant with the two shootings. These included a

7.62 by 39-caliber bullet casing of the same type and size as those found at 

the Berkeley and Oakland shootings and a loaded 9-millimeter Ruger in the 

purse of a female passenger (Street) in the vehicle. She pointed out that a 9-

millimeter handgun was also used at the Oakland shooting. Arreola reported

the passenger denied knowledge of the 9-millimeter gun and stated that 

Tousant had handed the gun to her to place inside her purse and, after they 
17

were arrested, had urged her to “take it” saying it would only be a 

misdemeanor, and promised to bail her out. 

Tousant insists the information Arreola obtained from the illegal 

September 2 search of his phone was essential to the issuance of the warrant. 

Pointing to the fact the cellphone was found next to an interim driver’s 

license belonging to another individual, Tousant claims there was no 

evidence the phone was his. Tousant ignores the facts that the cellphone was 

recovered from the Camaro on the driver’s side of the car and that a rental 

agreement in his name was also found. These circumstances made it 

reasonable to infer the cellphone belonged to Tousant. Probable cause 

requires only a fair probability, not a certainty. (Farley, supra, 46 Cal.4th at 

p. 1098.)

The location of Tousant’s arrest after he was found driving the same 

Chevrolet Impala as that involved in the Berkeley shooting, the presence of 

his rental Camaro unlocked and with keys in the ignition at the scene of the 

Oakland shooting, the ballistics evidence potentially connecting him with 

both shootings, and his history of involvement with guns and shootings 

established probable cause that Tousant was involved in both shootings. And 

there was a nexus between the shootings and the cellphone. Arreola 

explained that based on her experience working in a felony assault unit, 

perpetrators often use their phones to communicate plans for assault, to 

retain photos of themselves with weapons, and to brag about completed 

assaults. (See Riley, supra, 573 U.S. at p. 399; see, e.g., People v. Price (2017) 

8 Cal.App.5th 409, 427, 431 [murder case in which text messages strongly 

implicated defendant as shooter and evinced intent to kill]; In re K.B. (2015) 

238 Cal.App.4th 989, 994 [incriminating photos extracted from cellphone 

showed juveniles posing with handguns]; People v. Hollinquest (2010) 
18

190 Cal.App.4th 1534, 1544 [incriminating cellphone evidence linked codefendants to each other and to victim by multiple calls on day of murder and 

placed them in close proximity to each other and to scene of murder].)

Testimony further established Arreola would have sought the warrant 

even without the tainted cellphone information. (See Weiss, supra, 

20 Cal.4th at p. 1079.) Before she searched the cellphone, she confirmed 

Tousant’s identity and listed him as a suspect for the Oakland shooting based 

on the information set forth above. The trial court found the officer’s 

September 2 cellphone search did not negate her investigation efforts. (See 

Murray v. U.S. (1988) 487 U.S. 533, 542 [warrant fails independent source 

rule if the illegally obtained information prompted the agent’s decision to 

seek the warrant or affected the magistrate’s decision to issue the warrant].) 

The facts amply support the trial court’s finding that the police would have 

sought and obtained the warrant even without obtaining Tousant’s telephone 

number or driver’s license information.6 (See id. at pp. 543-544 [remand 

required where trial court makes no finding about whether illegal conduct 

was irrelevant to later securing warrant].) 

Both prongs of the independent source doctrine were satisfied here, and 

there was no error in the trial court’s ruling on Tousant’s suppression 

motion.7

6 Given this conclusion, it is unnecessary to address Tousant’s 

additional argument that the information downloaded from the cellphone 

would not have been inevitably discovered. Contrary to Tousant’s assertions, 

the trial court expressly stated it was not relying on the inevitable discovery 

rule to deny Tousant’s suppression motion. 

7 In light of our conclusion, we do not address Tousant’s prejudicial 

error argument. 
19

II.

Tousant Did Not Require Miranda Warnings Because 

He Was Not Interrogated.

Tousant contends the trial court erroneously admitted selfincriminating statements made to Sergeant Sanchez during a custodial 

interrogation about his son’s murder investigation, and without receiving 

advisements required under Miranda v. Arizona 384 U.S. 436 (Miranda). 

There was no error.

A. The Relevant Facts and Proceedings Below

Tousant was arrested after the August 31, 2015 traffic stop, and 

officers transported him to the Berkeley Police Department for questioning. 

Berkeley officers advised him of his Miranda rights, Tousant stated he 

understood, and he continued to participate in a conversation with them. On 

September 1, 2015, Sanchez learned Tousant was in custody for firearms 

charges arising from the traffic stop. He had no knowledge that Berkeley 

police were investigating Tousant for the Berkeley shooting. Instead, 

Sanchez was interested in information Tousant had about his son’s murder. 

On that basis, he obtained a removal order for Tousant, transported him to 

Oakland, and interviewed him in an interrogation room. Sanchez did not 

read Tousant his Miranda rights, did not ask Tousant about the Berkeley 

shooting and did not ask him about any other shootings he might have 

committed in the past. 

During a recorded conversation, Tousant described his son’s 

involvement in a Berkeley gang called “Waterfront.” Waterfront was feuding 

with another Berkeley gang, Five Finga Mafia, partially because Tousant Jr.

may have stolen a neck chain from a Five Finga Mafia member. In a social 

media post, the Five Finga Mafia gave Waterfront an ultimatum to return 

the chain or face a violent feud. The chain was not returned. Tousant 
20

believed his son was invited to a dice game under false pretenses—Nigel 

Blackwell, a Five Finga gang member who went by the alias “Five Finga 

NOC,” waited in a nearby apartment for Tousant’s son to leave the game 

before shooting him. 

Before trial, Tousant moved to exclude his statements to Sanchez, 

arguing Sanchez failed to Mirandize him. The trial court heard testimony 

from Sanchez, viewed Sanchez’s videotaped interview of Tousant and ruled 

Tousant’s statements admissible.8 According to the trial court, Tousant was 

in custody but appeared willing to talk to Sanchez about people he knew or 

events that occurred in Tousant Jr.’s murder case. The trial court further 

found Sanchez lacked any knowledge about the Berkeley shooting, lacked 

specifics about the firearm possession charges and limited his questioning to 

the circumstances of Tousant Jr.’s death. After noting that an 

“[i]nterrogation is a situation where the police are engaging in conduct that 

might reasonably be interpreted as being likely to elicit an incriminating 

response from somebody”, the trial court observed that in the circumstances

here “it would be hard” for Sanchez to elicit information about a case “he 

knew nothing about.”

B. The Relevant Law

The Fifth Amendment privilege against self-incrimination requires 

officers to inform criminal suspects, before questioning, of their right to 

remain silent, and that statements made may be used against them in court.

(Miranda, supra, 384 U.S. at p. 479.) That right attaches during a custodial

“interrogation.” (Ibid.) An interrogation refers to express questioning or its 

functional equivalent, including “any words or actions on the part of the 

8 There is no video recording or transcript of the interview in the 

record.
21

police” that the “police should know are reasonably likely to elicit an 

incriminating response from the suspect.” (Rhode Island v. Innis (1980) 

446 U.S. 291, 300-302, fn. omitted (Innis).) “The latter portion of this 

definition focuses primarily upon the perceptions of the suspect, rather than 

the intent of the police. This focus reflects the fact that the Miranda

safeguards were designed to vest a suspect in custody with an added measure 

of protection against coercive police practices, without regard to objective 

proof of the underlying intent of the police. A practice that the police should 

know is reasonably likely to evoke an incriminating response from a suspect 

thus amounts to interrogation. But, since the police surely cannot be held 

accountable for the unforeseeable results of their words or actions, the 

definition of interrogation can extend only to words or actions on the part of 

police officers that they should have known were reasonably likely to elicit an 

incriminating response.” (Innis, at pp. 301-302.)

Whether an interrogation occurred is determined by “an objective test 

according to which we ‘analyze the total situation which envelops the 

questioning by considering such factors as the length of the interrogation, the 

place and time of the interrogation, the nature of the questions, the conduct 

of the police and all other relevant circumstances.’ ” (People v. Morse (1969) 

70 Cal.2d 711, 722.) “Not every question directed by an officer to a person in 

custody amounts to an ‘interrogation’ requiring Miranda warnings. The 

standard is whether ‘under all the circumstances involved in a given case, the 

questions are “reasonably likely to elicit an incriminating response from the 

suspect.” ’ [Citation.] This is an objective standard. ‘The subjective intent of 

the [officer] is relevant but not conclusive. [Citation.] The relationship of the 

question asked to the crime suspected is highly relevant. [Citation.]’ ” 

(People v. Wader (1993) 5 Cal.4th 610, 637.) “We review the trial court’s 
22

finding regarding whether interrogation occurred for substantial evidence or 

clear error.” (People v. Clark (1993) 5 Cal.4th 950, 985, overruled in part on 

other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) 

C. Analysis

There is no dispute that Tousant was in custody when he made his 

statements to Sanchez. Rather, the issue is whether Tousant’s statements 

were the product of an interrogation. (See Innis, supra, 446 U.S. at p. 300.) 

For the reasons set forth below, we conclude that substantial evidence 

supports the trial court’s finding that there was no interrogation and thus no 

violation of Miranda.

1. Incriminating Statements About the Berkeley Shooting

Tousant was in custody for the August 31, 2015 firearms offense, not 

the Berkeley shooting, contrary to Tousant’s assertions. In fact, he was not 

arrested for the Berkeley shooting until October 2015. Sanchez was not a 

Berkeley police officer; he was an Oakland officer. He did not know about the 

Berkeley shooting, and there was no reason for him to have believed the 

interview about Tousant Jr.’s murder would elicit incriminating information 

about the firearm possession charges for which he was in the custody of the 

Berkeley police. (See People v. Dement (2011) 53 Cal.4th 1, 26-27 [questions 

about unrelated offenses permissible because they could not be reasonably 

construed as calling for an incriminating response].) 

Moreover, the trial court found Sanchez’s questions were designed to 

elicit information about Tousant’s son’s murder investigation, not about any 

offense of which Tousant was in custody or even suspected. (See People v. 

Elizalde (2015) 61 Cal.4th 523, 537 [although not a necessary showing, 

“design or intent of the police is relevant to the extent it demonstrates what 

the police should have known about the nature of the questioning”]; People v. 
23

Wader, supra, 5 Cal.4th at p. 637 [when assessing whether there was an 

interrogation for the purposes of Miranda, the “ ‘relationship of the question 

asked to the crime suspected is highly relevant’ ”].) The trial court further 

found Tousant was willing to offer Sanchez information he collected about his 

son’s murder. 

Relying on People v. Anthony (2019) 32 Cal.App.5th 1102 (Anthony), 

Tousant argues Sanchez should have known questioning Tousant about his 

son’s murder would elicit incriminating information about offenses for which 

Tousant was being investigated. But the circumstances here are different 

from those in Anthony. 

In that case, Anthony saw his fellow gang member shot and killed in

Oakland. (Anthony, supra, 32 Cal.App.5th at p. 1115.) Even though he was 

close by, Anthony was not shot. (Ibid.) One month later, Berkeley police 

arrested Anthony, who was a suspect in the subsequent retaliatory killing of 

the brother of a rival Berkeley gang member. (Id. at pp. 1108-1109, 1112.) 

After his arrest, Anthony was transferred to Oakland police for questioning. 

(Id. at p. 1117.) During questioning, the Oakland police acknowledged their 

awareness that Anthony was a suspect in a Berkeley murder that might be 

gang related and possibly related to the earlier Oakland shooting. (Id. at 

pp. 1114-1116, 1124.) The Oakland officers also had reason to know about 

the relationship between the two cases based on Anthony’s previous 

statements to them about his gang’s feud with the Berkeley gang. (Id. at 

p. 1124.) Despite this, the officers pursued lines of questioning that called for 

responses bearing directly on the Anthony’s motive and intent in the crime of 

arrest—the Berkeley shooting—and this court determined they should have 

provided Miranda warnings before questioning him further. (Id. at pp. 1124.)
24

Here, by contrast, Sanchez had no knowledge of Tousant’s possible

involvement in the Berkeley shooting. Nor did he have reason to know. (See 

Anthony, supra, 32 Cal.App.5th at p. 1124.) No one had informed Sanchez 

that Tousant was a suspect in that shooting. We are not persuaded by 

Tousant’s claim Sanchez was required to ascertain all the circumstances of 

his August 31 arrest by Berkeley police, such as confirming Tousant was 

arrested in the car used by the suspects in the Berkeley shooting. Berkeley 

police informed Sanchez that Tousant was in custody on firearm possession

charges, not charges involving a shooting. Sanchez did not ask Tousant any 

questions about the firearms charges, and his questions about Tousant’s son’s 

murder were not likely elicit incriminating responses bearing on those

charges. Tousant cites no authority for the proposition that Miranda

requires an officer who questions a witness about one crime must determine 

whether a defendant is suspected by another police department of a crime for 

which he has not been charged.

Nor are we persuaded by Tousant’s contention that Sanchez’s past 

statements to Tousant—discouraging him from retaliating against anyone for 

his son’s murder—demonstrate that Sanchez knew or should have known his 

questions were reasonably likely to elicit an incriminating response from the 

Tousant. Sanchez’s concern that Tousant might attempt to retaliate against 

the rival gang in the future did not require him to avoid questioning Tousant 

about his son’s murder—a crime of which he was in no way suspected—

because his answers might potentially be incriminating in an entirely 

different and, as far as he knew, merely potential future crime. (See Innis, 

supra, 446 U.S. at pp. 301-302.)

Finally, while Tousant argues that it “strains credulity” that Sanchez 

did not know Tousant was a suspect in the Berkeley shooting, the trial court 
25

heard Sanchez’s testimony and found otherwise, and we defer to its

credibility determinations and factual findings. (See People v. Vance (2010) 

188 Cal.App.4th 1182, 1211.) 

2. Incriminating Statements About the Oakland Shooting

For somewhat different reasons, we reject Tousant’s additional 

argument, first raised on appeal, that Sanchez should have known his 

questioning would elicit an incriminating response regarding the Oakland

shooting.9 Sanchez was not questioned at the hearing on the Miranda issue 

about whether he was aware of the Oakland shooting and Tousant’s possible 

involvement. On the record before us, he has failed to show Sanchez should 

have known his questions would likely elicit incriminating testimony about 

the Oakland shooting. 

First, Tousant relies on a police bulletin prepared and distributed by 

Officer Arreola on August 27, 2015, to Oakland Police Department sergeants 

and officers and seeking assistance to identify two suspects in the Oakland 

shooting. But the bulletin itself is not in the record. Instead, any 

information about the bulletin is contained in secondary sources—Officer 

Arreola’s preliminary hearing testimony and the search warrant she also 

prepared to search the cellphone found in the Camaro. 

Although the search warrant briefly mentions the bulletin, it provides 

little information about it. Arreola testified that the bulletin stated that a 

car was found with indicia indicating it was Tousant’s car but there was no 

probable cause to detain Tousant. The bulletin asked that she be notified if 

another officer contacted Tousant for some other reason. 

9 Tousant did not make that argument in the trial court in his in limine 

motion seeking to exclude his statements to Sanchez. Tousant forfeited this 

argument by failing to raise it below, but the People do not argue forfeiture 

and so we shall address it. 
26

Second, Tousant relies on the search warrant because it suggests a 

connection between Tousant and the Oakland shooting, and it indicates that 

Arreola, and therefore the entire Oakland Police Department, obtained 

additional significant information on August 31, 2015, the day before 

Sanchez interviewed Tousant. Specifically, Arreola learned that an Oakland

officer had detained Tousant and two passengers that day because he was

sitting in a car sought pursuant to a felony warrant relating to the Berkeley 

shooting investigation. As we previously described, Berkeley police searched 

the vehicle, yielding a handgun and a bullet casing in the rail of the driver’s 

seat. The bullet casing was the same size as casings found at the scene of the 

shooting Berkeley was investigating. In the search warrant, Arreola noted

that bullet casings of the same size had been found at the scene of the 

Oakland shooting. 

Sanchez was not questioned at the suppression hearing about the 

bulletin, the search warrant or anything pertaining to the Oakland shooting 

or investigation. Nor was he questioned about anything he may have learned 

from Arreola beyond what was in the warrant. He testified that he may have 

talked to a Berkeley officer on September 1, before picking Tousant up from 

the jail. He learned that Tousant was in custody for a firearms offense but 

did not ask for details about that charge. He learned Tousant was not alone 

when he was stopped, but this was the only information he received. 

On this record, Tousant fails to demonstrate that Sanchez knew or 

should have known at the time he questioned Tousant about his son’s 

murder, that such questioning of Tousant would likely elicit incriminating 
27

statements.10 Thus, Tousant’s statements were not illegally obtained, and 

the trial court did not err by admitting them.11

III.

The Trial Court Properly Admitted Evidence of Tousant’s Prior Acts.

Tousant contends the trial court abused its discretion by admitting

evidence of certain prior uncharged crimes and bad acts under Evidence Code 

section 1101. We find no abuse of discretion here.

A. The Relevant Proceedings Below

The prosecutor moved to admit the evidence that in April 2015, 

Tousant stood outside the hospital where Tousant Jr. was brought for 

treatment, and while holding a firearm and ammunition, stated, “Fuck the 

police” and evidence that Tousant participated in the Oakland shooting. The 

trial court ruled evidence of both events was admissible under Evidence Code 

section 1101, subdivision (b). The trial court found the hospital incident

tended to prove Tousant’s motive for committing the Berkeley shooting—to 

exact revenge for his son’s murder. For the Oakland shooting, the trial court 

explained it occurred at the supposed address of the person Tousant 

suspected of killing his son. This fact was probative of Tousant’s intent and 

10 Tousant cites People v. Roberts (2017) 13 Cal.App.5th 565 for the 

proposition that an interrogation occurs if a defendant is questioned in a way 

that would incriminate him in a potential future case for a crime defendant 

has not committed or is not known to have committed at the time. But as 

Tousant acknowledges, Roberts involved questions about gang affiliation, and 

the court reasoned that “an admission of gang membership always carries 

with it the incriminatory prospect of future enhanced punishment.” (Id. at 

p. 576.) Unlike admission of gang membership, statements about a crime 

committed by a third party against a family member or friend of the 

defendant do not “always carry with [them any] incriminatory prospect.”

11 In light of this conclusion, we do not address Tousant’s prejudicial 

error argument. 
28

common plan to “find and address or deal with the people he thinks or 

thought might have been involved in his son’s shooting.” 

The trial court also found admitting these acts into evidence would not 

result in an undue consumption of time and would not confuse the jury. After 

the close of evidence, the trial court instructed the jury that they “may, but 

are not required to, consider that evidence [of uncharged conduct] for the 

limited purpose of deciding whether the defendant had a motive to commit 

the crimes or offenses alleged in this case, or that the defendant had a plan to 

commit the offenses or crimes alleged in this case.” It admonished the jury 

that the conduct could not be considered for propensity and was not sufficient 

on its own to support a conviction. 

B. The Relevant Law

While evidence of prior misconduct is inadmissible to prove propensity 

to commit a crime on a particular occasion, uncharged crimes or bad acts are 

admissible to prove other facts, such as “motive, opportunity, intent, 

preparation, [or] plan.” (Evid. Code, §1101, subds. (a), (b).) Admission 

depends on “ ‘(1) the materiality of the facts sought to be proved, (2) the 

tendency of the uncharged crimes to prove those facts, and (3) the existence of 

any rule or policy requiring exclusion of the evidence.’ ” (People v. Kelly

(2007) 42 Cal.4th 763, 783.) A jury may consider evidence of a person’s 

conduct admitted under Evidence Code section 1101, subdivision (b) if the 

conduct is proven by a preponderance of the evidence. (People v. Leon (2015) 

61 Cal.4th 569, 597.) Consistent with Evidence Code section 352, “[t]he 

probative value of the uncharged offense evidence must be substantial and 

must not be largely outweighed by the probability that its admission would 

create a serious danger of undue prejudice, of confusing the issues, or of 
29

misleading the jury.” (People v. Kipp (1998) 18 Cal.4th 349, 371.) We review

trial court rulings admitting this evidence for an abuse of discretion. (Ibid.)

C. Analysis

1. Tousant’s Conduct Outside the Hospital

There was no abuse of discretion in admitting Tousant’s statements 

and actions outside the hospital, which were highly probative of his motive to 

commit the Berkeley shooting. (See People v. Thompson (2016) 1 Cal.5th 

1043, 1114 [uncharged conduct may be relevant to establishing motive if 

there is a direct relationship between the uncharged conduct and an element 

of the charged offense].) While motive is not an element of Tousant’s 

offenses, it is “an intermediate fact” probative of his intent. (Ibid.) Tousant’s 

possession of a shotgun and his statement, “Fuck the police” while standing 

outside the hospital where Tousant Jr. died tended to establish a motive to 

retaliate for his son’s death instead of relying on police and prosecutors to 

bring the killer to justice. Although Tousant did not know who killed his son 

when he engaged in this conduct, the victims of the Berkeley shooting 

included a suspected member of the Five Finga Mafia, the group Tousant 

later believed was responsible for his son’s murder. That the gun Tousant 

held while standing outside the hospital was different from the gun used in 

the Berkeley shooting does not render this evidence inadmissible. 

“[E]vidence of weapons unconnected to the crime may be relevant for other 

purposes” (People v. Merriman (2014) 60 Cal. 4th 1, 81), such as motive, 

which “ ‘is not dependent on comparison and weighing of the similar and 

dissimilar characteristics of the past and present crimes.’ ” (Thompson, 

supra, 1 Cal.5th at p. 1114.) 

Furthermore, the court reasonably concluded admitting this evidence 

was not unduly prejudicial. (See People v. Kipp, supra, 18 Cal.4th at p. 371.) 

To the extent Tousant contends this evidence allowed him to be characterized 
30

as a “gun-toting criminal,” it was simply cumulative of other evidence 

admitted at trial that Tousant possessed guns (e.g., photo showing Tousant

with two handguns and holding an assault rifle). (See People v. Gunder

(2007) 151 Cal.App.4th 412, 417 [“evidence demonstrat[ing] criminal 

propensity is simply a factor to consider in assessing the prejudice from its 

admission; it is not a basis for exclusion unless the evidence otherwise lacks 

any probative value”].) We also presume the jury, as instructed, only 

considered this incident for the limited purpose of establishing Tousant’s

motive to commit his charged offenses, not his propensity to carry firearms. 

(See People v. Holt (1997) 15 Cal.4th 619, 662 [“[j]urors are presumed to 

understand and follow the court’s instructions”].) Admitting this evidence 

was not an abuse of discretion. 

2. The Oakland Shooting

Similarly, the court properly found the Oakland shooting evidence 

probative of Tousant’s common plan to find and harm people he believed to 

have killed his son. “[E]vidence that the defendant has committed uncharged 

criminal acts that are similar to the charged offense may be relevant if these 

acts demonstrate circumstantially that the defendant committed the charged 

offense pursuant to the same design or plan he or she used in committing the 

uncharged acts.” (People v. Ewoldt (1994) 7 Cal.4th 380, 403 (Ewoldt).) To 

prove the existence of a common design or plan, there must be a “greater 

degree of similarity” between the uncharged act and charged offense. (Id. at 

p. 402 [the least degree of similarity is required to establish intent, and the 

greatest degree of similarity is required to establish identity].) The “common 

features must indicate the existence of a plan rather than a series of similar

spontaneous acts, but the plan thus revealed need not be distinctive or

unusual.” (Id. at p. 383.)
31

The Oakland and Berkeley shootings shared a requisite level of 

common features. Both incidents involved shooting at victims whom Tousant 

believed to be members of the Five Finga Mafia—Kevin Greene and Nigel 

Blackwell. Text messages on Tousant’s cellphone evidenced his belief Nigel 

Blackwell lived at 1314 105th Avenue, the address of the Oakland shooting. 

Kevin Greene was a victim in the Berkeley shooting, which occurred near 

San Pablo Park, an area where the Five Finga Mafia was known to operate. 

The shootings occurred only five days apart and were executed by firing 

multiple shots at the supposed targets. 7.62 by 39-millimeter ammunition or 

casings—like the bullet found in Tousant’s car during the August 31 traffic 

stop—were recovered from the scenes of both shootings. 

Tousant argues the Oakland shooting was insufficiently similar to the 

Berkeley shooting to be admissible. Primarily, he claims the suspects’ 

descriptions and the car allegedly used in the Oakland shooting—an older 

four-door vehicle—do not match him or his car. But greater similarity 

between the uncharged conduct and charged offense is required for 

demonstrating identity, not the existence of a common plan. (See Ewoldt, 

supra, 7 Cal.4th at pp. 402-403.) The manner in which the shootings were 

executed, the short timeframe between the two crimes, and the fact that the 

intended victims were affiliated with the same gang demonstrate a degree of

similarity sufficient to support an inference that Tousant acted according to a 

common plan to retaliate against his son’s alleged killers. (Cf. People v. 

Grant (2003) 113 Cal.App.4th 579, 589 [taking similar types of items, 

computer equipment, from similar places, empty schools after hours, by 

prying open doors or windows was not sufficiently similar to demonstrate 

common plan particularly where burglaries occurred three years apart].) 
32

We also disagree that the evidence failed to establish Tousant’s

involvement in the Oakland shooting, thus rendering this evidence unduly 

prejudicial. Tousant’s Camaro was parked across the street from the 

shooting, his text messages and internet searches identified the address of 

the shooting—a preponderance of the evidence established that Tousant was 

at the scene of and involved in the Oakland shooting. (See People v. Leon, 

supra, 61 Cal.4th at p. 597.) The trial court’s instructions to the jury that an

uncharged offense does not sufficiently support a conviction of the charged 

offense—here, the Berkeley shooting—on its own mitigated any prejudicial 

effect of admitting the Oakland shooting evidence. (See Ewoldt, supra, 

7 Cal.4th at p. 405 [noting “jury might have been inclined to punish 

defendant for the uncharged offenses, regardless whether it considered him 

guilty of the charged offenses”].) The trial court did not abuse its discretion 

by admitting evidence of the Oakland shooting. 

Finally, we reject Tousant’s additional claim that admission of these 

prior acts violated his constitutional rights. The “ ‘ “routine application of 

state evidentiary law does not implicate [a] defendant’s constitutional 

rights.” ’ ” (People v. Mills (2010) 48 Cal.4th 158, 194.)

IV.

The Trial Court Properly Denied Tousant’s Motion

to Sever His Offenses.

Tousant argues the trial court erroneously denied his request to sever 

his Berkeley assault charges from his Oakland firearm possession charges. 

He claims his offenses did not meet the statutory criteria for joinder under 

section 954, and the trial court abused its discretion by allowing a weak case 

to be bolstered by his stronger Oakland firearm possession case. There was 

no error or abuse of discretion in the trial court’s ruling.
33

A. The Relevant Law

Two or more different offenses “connected together in their commission” 

or “of the same class of crimes or offenses” may be charged and tried together 

in one case. (§ 954.) A court may further consolidate to one or more 

accusatory pleadings if “filed . . . in the same court.” (Id.) “ ‘Offenses of the 

same class are offenses which possess common characteristics or attributes.’ ” 

(People v. Landry (2016) 2 Cal.5th 52, 76 [possession of a weapon while in 

custody and assault by a life prisoner share common characteristics of 

offenses in custodial context and prison-made weapons and served same 

purpose of preventing assault by armed prisoners]; cf. People v. Madden

(1988) 206 Cal.App.3d Supp.14, 19 [charges of possession of hypodermic 

needle and failure to appear have no common characteristics or attributes].)

Courts may sever properly joined offenses “in the interests of justice 

and for good cause shown,” but there is a preference for joinder in the 

interests of judicial economy and efficiency. (§ 954; People v. Simon (2016) 

1 Cal.5th 98, 122.) If the statutory requirements for joinder are satisfied, a 

defendant establishes an abuse of discretion denying severance “only on a 

clear showing of prejudice.” (People v. Lucky (1988) 45 Cal.3d 259, 277.) 

“Refusal to sever may be an abuse of discretion where: (1) evidence of the 

crimes to be jointly tried would not be cross-admissible in separate trials; (2) 

certain of the charges are unusually likely to inflame the jury against the 

defendant; (3) a ‘weak’ case has been joined with a ‘strong’ case or with 

another ‘weak’ case, so that the ‘spillover’ effect of aggregate evidence on 

several charges might well alter the outcome of some or all of the charges; 

and (4) any one of the charges carries the death penalty or joinder of them 

turns the matter into a capital case.” (People v. Gonzales and Soliz (2011) 

52 Cal.4th 254, 282.) The potential prejudice from the joint trial is then 
34

balanced against the benefits to the state. (People v. Soper (2009) 45 Cal.4th 

759, 775 (Soper).) 

B. Analysis

The statutory requirements for joinder were satisfied here. Both of 

Tousant’s criminal complaints charged him with felon in possession of a 

firearm—counts 8 and 11. (§ 29800, subd. (a)(1).) Those and Tousant’s other 

firearms charges—felon carrying a concealed, loaded, unregistered firearm in 

a vehicle (§§ 25400, subds. (a)(1), (c)(1), (c)(6)), felon carrying a loaded, 

unregistered firearm in a city (§§ 25850, subds. (a), (c)(1), (c)(6))—and the 

Berkeley assault with firearm charges are in the same class because they all 

involve the illegal use of firearms.12 To the extent Tousant argues the 

statutes for assault and firearm charges are in different parts of the Penal 

Code and thus not in the “same class,” we disagree. The statute does not 

mandate any such requirement. (See People v. Landry, supra, 2 Cal.5th at 

p. 76.) 

Nor did the trial court abuse its discretion by rejecting Tousant’s 

motion to sever the joined offenses. Tousant concedes most evidence from the 

Oakland traffic stop would be cross-admissible in a separate trial for the 

Berkeley shooting. (See People v. Carter (2005) 36 Cal.4th 1114, 1154 [crossadmissibility alone sufficiently dispels any prejudice].) First, Tousant was 

12 Various cases explain the legislative purpose behind these firearm 

statutes. (See, e.g., People v. Bedolla (2018) 28 Cal.App.5th 535, 552 [purpose 

of § 25850, subd. (a) to address the hazard presented by carrying loaded 

firearms in public]; People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1409 

[legislative intent of § 12021, now § 29800, to “ ‘ “limit as far as possible the 

use of instruments commonly associated with criminal activity” ’ ” and 

presumption “ ‘the danger is greater when the person possessing the 

concealable firearm has previously been convicted of felony’ ”]; People v. 

Martinez (1987) 194 Cal.App.3d 15, 20 [noting Legislature instituted specific 

punishment for assaults committed with firearms in § 245].) 
35

arrested for his August 31 firearm possession offenses in the same car used 

during the Berkeley shooting, the white Chevrolet Impala. Indeed, police 

initiated the stop because they sought the Impala in relation to a serious 

crime. Second, a search of the Impala during the traffic stop yielded a 7.62 

by 39-caliber bullet, the type of bullet used in the Berkeley shooting. Tousant 

nonetheless argues the 9-millimeter handgun found in his car during the 

Oakland traffic stop would not be independently admissible in a separate 

trial for the Berkeley shooting. Even assuming we agree, that fact does not 

conclusively establish prejudice. (Soper, supra, 45 Cal.4th at p. 775 [in the 

absence of cross admissibility, courts proceed to consider the other factors for 

assessing “spill-over” effect].)

The additional section 954 factors support the trial court’s order. 

Tousant does not contend the charges are likely to unusually inflame the jury 

or that any of the charges are capital offenses. (See People v. Gonzales and

Soliz, supra, 52 Cal.4th at p. 282.) Instead, he claims joinder impermissibly 

bolstered a weak case—the Berkeley shooting—with a strong one—the 

Oakland firearm possession. Although the evidence supporting Tousant’s

Berkeley assault offense is circumstantial, the evidence for both charges is

strong. Tousant’s text messages, cellphone tower records establishing 

Tousant’s location during the shooting, and his possession of the same car 

and bullets used in the Berkeley shooting tended to prove he committed the 

Berkeley assault. (See Soper, supra, 45 Cal.4th at p. 781 [“A mere imbalance 

in the evidence, however, will not indicate a risk of prejudicial ‘spillover 

effect’ ”].) On balance, Tousant cannot demonstrate any prejudice 

outweighed the benefits of joinder. (See id. at p. 782 [severance of joined 

charges denies state benefits of efficiency and conservation of resources].)
36

We reject Tousant’s further claim that joining his offenses in a single 

trial was so grossly unfair as to violate his due process rights. While we “still 

must determine whether, in the end, the joinder of counts . . . for trial 

resulted in gross unfairness depriving the defendant of due process of law,” 

nothing in the record supports his assertion. (People v. Rogers (2006) 

39 Cal.4th 826, 851.) In addition to rehashing his arguments regarding 

prejudice that we have already rejected, Tousant claims joinder allowed the 

prosecutor to impermissibly argue the handgun obtained from the Oakland 

traffic stop was used in the Berkeley shooting. But the prosecutor expressly 

informed the jury that that gun was not used in the Berkeley shooting. 

Tousant further complains the jury was not instructed that evidence for one 

charge may not be considered when determining his guilt for another charge. 

However, there is no requirement that the trial court provide such 

instruction, and the trial court did instruct the jury with CALCRIM 

No. 3515, “Multiple Counts: Separate Offenses (Pen. Code, § 954),” stating 

“Each of the counts charged in this case is a separate crime. You must 

consider each count separately and return a separate verdict for each one.” 

(See CALCRIM No. 3515; People v. Geier (2007) 41 Cal.4th 555, 578-579.) 

Having concluded Tousant did not suffer any prejudice from his joint trial, we 

may also “reject his contention that the joint trial violated his due process 

rights.” (People v. Sapp (2003) 31 Cal.4th 240, 259–260.) 

V.

Substantial Evidence Supports Tousant’s Assault Convictions.

Tousant argues there was insufficient evidence to support his 

conviction of three counts of assault with firearm (§ 245, subd. (a)(2)

(counts 2-4)). Tousant concedes bullets were fired at 2806 Mabel Street. But 

he claims there was insufficient evidence that David Conerly, Kevin Greene, 
37

and Jocko Milan were standing close enough to the house, and thus the 

bullets, to establish that they were victims of the assault. We are 

unpersuaded.

A. The Relevant Law

Challenges to the sufficiency of the evidence supporting a conviction 

requires reviewing the entire record in the light most favorable to the 

judgment to assess whether it contains substantial evidence—“ ‘evidence that 

is reasonable, credible and of solid value—such that a reasonable trier of fact 

could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Golde

(2008) 163 Cal.App.4th 101, 108.) “Substantial evidence includes 

circumstantial evidence and any reasonable inferences drawn from that 

evidence.” (In re Michael D. (2002) 100 Cal.App.4th 115, 126.) When 

reviewing the sufficiency of the evidence, we do not resolve any credibility 

issues or evidentiary conflicts. (People v. Zamudio (2008) 43 Cal.4th 327, 

357.) Instead, we presume “in support of the judgment the existence of every 

fact the trier could reasonably deduce from the evidence.” (People v. Kraft

(2000) 23 Cal.4th 978, 1053.) 

Section 245, subdivision (a)(2) provides: “Any person who commits an 

assault upon the person of another with a firearm shall be punished by 

imprisonment . . . .” Assault “requires only a general criminal intent and not 

a specific intent to cause injury.” (People v. Williams (2001) 26 Cal.4th 779, 

782.) The defendant must have “(1) willfully committed an act which by its 

nature would probably and directly result in the application of physical force 

against another and (2) was aware of facts that would lead a reasonable 

person to realize this direct and probable consequence of his or her act.” 

(People v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1186.) A defendant may 

be convicted of multiple counts of assault when shooting into a group of 
38

people. (See, e.g., People v. Riva (2003) 112 Cal.App.4th 981, 999 [“when the 

defendant shoots into a group of persons primarily targeting only one of 

them, the defendant can be convicted of assault with a deadly weapon as to 

the nontargeted members of the group”].)

B. Analysis

There was substantial evidence the shots were fired into the group 

consisting of Conerly, Greene, and Milan,13 thus supporting a finding all 

three were victims of assault. The shots fired from the Impala focused on the 

area of 2806 Mabel Street—a bullet shattered one of the windows, and the 

driveway and front stairs of the house were riddled with bullet holes. 

Accounts from several witnesses established Conerly, Greene, and Milan

were just outside 2806 Mabel Street before the shooting occurred. Mario 

Thomas, a witness, told police that he was hanging out at that house with 

Milan, Conerly, and Greene shortly before the shooting. He crossed the 

street to his car and, while there, saw the Impala stop “near” where Conerly, 

Greene, and Milan were still hanging out. He then heard 10 to 12 shots fired, 

causing him to fall to the ground under his car. Based on the evidence that

the Impala pulled up near where Conerly, Greene, and Milan remained

shortly after Thomas crossed the street, and the shots were fired from the 

Impala towards the house where the three were hanging out, the jury could 

reasonably infer Greene, Conerly, and Milan were in an area likely to be hit 

by a bullet. 

Tousant’s claim that a pre-trial statement by Greene noting that he 

was with his friend at San Pablo Park before the shooting and implying he 

13 Rashad Jacob, who was also part of this group, was shot, and 

Tousant does not contest the sufficiency of the evidence supporting his 

conviction of assault against that victim. 
39

was not within the line of fire, does not change this result. (See People v. 

Zamudio, supra, 43 Cal. 4th at p. 357 [“ ‘Conflicts and even testimony [that] 

is subject to justifiable suspicion do not justify the reversal of a judgment, for 

it is the exclusive province of the . . . jury to determine the credibility of a 

witness and the truth or falsity of the facts upon which a determination 

depends’ ”].) Tousant’s additional argument that Greene, Conerly, and Milan 

were only “near” the Impala and thus not sufficiently close to the line of fire 

is no more successful. The shots were fired over a large area where the three 

men congregated—officers collected bullet shells from both 2806 and 2810 

Mabel Street, the neighboring house. And although specific intent to target a 

person is not required to support a conviction for assault, 10 to 15 shots were 

fired directly at one of the men who tried to run down the street and hid 

behind a bystander’s car. (See People v. Aznavoleh, supra, 210 Cal.App.4th at 

pp. 1186-1187; cf. People v. Medina (2019) 33 Cal.App.5th 146, 153 [for 

attempted murder conviction, substantial evidence victims were in the line of 

fire where defendant pointed and fired gun at one victim, and other victims 

were 5 to 20 feet away from where defendant was shooting].) The evidence 

supports Tousant’s assault convictions. 

VI.

The Trial Court Properly Responded to a Jury Question.

Tousant argues the trial court failed to adequately respond to a jury 

question seeking clarification about the date of the conduct supporting his

August 15 firearm possession charge—the same day as the Berkeley 

shooting. This claim fails.

The trial court instructed the jury on the elements for unlawful 

possession of a firearm in violation of section 29800, subdivision (a)(1). For 

count 8, the verdict form required the jury to determine whether Tousant 
40

unlawfully possessed a firearm “on or about August 15, 2015.” During 

deliberations, the jury asked the court: “With regards to Count #8

[possession of a firearm], what does the phrase ‘on or about August 15’ mean? 

Does this mean before/after the 15th? Does it mean April? How flexible is 

this phrase?” After conferring with counsel, the court responded, “With 

respect to count 8, the phrase ‘on or about August 15’ concerns evidence that 

was presented relative to conduct alleged to have occurred on that [sic]. [¶] If 

this [does] not adequately answer your question, please let me know.” Jurors 

remained confused and again asked for clarification. The court and counsel 

conferred again, and the court responded, “In this particular case . . . [i]t’s 

August 15.” 

Rather than identifying an error in this response, Tousant argues the 

trial court did not adequately clarify that count 8 related to his conduct on 

August 15, 2015. This is unconvincing. Section 1138 requires trial courts “to 

provide the jury with information the jury desire[s] on points of law” during

deliberations. (People v. Smithey (1999) 20 Cal.4th 936, 985 (Smithey); 

§ 1138.) “Where the original instructions themselves are full and complete, 

the court has discretion under section 1138 to determine what additional 

explanations are sufficient to satisfy the jury’s request for information.” 

(People v. Beardslee (1991) 53 Cal.3d 68, 97.) The court must “rectify any 

confusion expressed by the jury regarding instructions, but has discretion to 

determine what additional explanations are sufficient to satisfy the jury’s 

request for information.” (Smithey, at p. 1009.) 

Initially, Tousant forfeited this challenge because the court responded 

after consulting with Tousant’s trial counsel. (People v. Ross (2007) 

155 Cal.App.4th 1033, 1048 [party forfeits objection to “court’s response to a 

jury inquiry through counsel’s consent, or invitation or tacit approval of, that 
41

response”].) Even assuming Tousant preserved the issue for our review, the 

court’s response was not an abuse of discretion. (See People v. Lua (2017) 

10 Cal.App.5th 1004, 1016 [standard of review for claimed errors under 

section 1138].) Count 8, Tousant’s firearm possession charge related to his 

conduct on August 15, 2015, the day of the Berkeley shooting. (§ 29800, 

subd. (a)(1) (count 8)). Upon request, the trial court clearly identified the 

date of conduct supporting this charge, August 15. This was the correct 

response, and Tousant does not identify any additional information that was 

necessary to address the jury’s confusion. There was no abuse of discretion. 

VII.

Tousant Does Not Establish Ineffective Assistance of Counsel.

Tousant broadly asserts he received ineffective assistance of counsel for 

any objections we find inadequately preserved in the trial court, and thus 

forfeited on appeal. This generic argument fails to satisfy the heavy burden 

to prevail on an ineffective assistance of counsel claim on appeal. 

For that, a defendant must show (1) trial counsel’s performance was 

deficient, falling below an objective standard of reasonableness when 

measured by prevailing professional norms, and (2) there is a reasonable 

probability that, but for counsel’s errors, the result of the proceeding would 

have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) It is 

“particularly difficult to prevail on an appellate claim of ineffective 

assistance. On direct appeal, a conviction will be reversed for ineffective 

assistance only if (1) the record affirmatively discloses counsel had no 

rational tactical purpose for the challenged act or omission, (2) counsel was 

asked for a reason and failed to provide one, or (3) there simply could be no 

satisfactory explanation. All other claims of ineffective assistance are more 
42

appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013) 

57 Cal.4th 986, 1009.)

Relevant here, Tousant forfeited his challenges to the court’s response 

to a jury question and the breadth of information permitted by the search 

warrant of his cellphone. But Tousant simply states “there was no 

conceivable tactical reason not to object to the errors described above.” There 

is no indication in the record why counsel did not object to either issue and 

there may be satisfactory explanations for both. For the trial court’s response 

to the jury, trial counsel may have believed the court corrected any 

misconceptions about Tousant’s charged firearm offense. As for the objection 

to the search warrant, trial counsel may have believed it would be futile to 

object to the breadth of the information sought by the search warrant. (See 

People v. Thompson (2010) 49 Cal.4th 79, 122 [“Counsel is not ineffective for 

failing to make frivolous or futile motions”].) Where the record is silent on 

these points, Tousant’s ineffective assistance claim is “more appropriately 

decided in a habeas corpus proceeding.” (People v. Mendoza Tello (1997) 

15 Cal.4th 264, 266-267.)

VIII.

There Was No Cumulative Error.

Tousant contends the cumulative effect of his identified errors warrant 

reversal of the judgment. We have not identified any errors, individual or 

cumulative, and reversal is not required. (People v. Coryell (2003) 

110 Cal.App.4th 1299, 1309.)

DISPOSITION

The judgment is affirmed. 
43

STEWART, J.

We concur.

KLINE, P.J.

RICHMAN, J.

People v. Tousant (A156044)
44

Trial Court:Alameda County Superior Court

Trial Judge: Hon. Kevin R. Murphy

Counsel: 

James S. Donnelly-Saalfield, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D. 

Share, Leif M. Dautch and Rene A. Chacon, Deputy Attorneys General, for 

Plaintiff and Respondent.